New York Council of Defense Lawyers in Successful Amicus Brief Cited by Second Circuit Decision in 9/11 Terror Witness Matter

January 26, 2006

Cleary Gottlieb helped achieve an important victory in the Court of Appeals for the Second Circuit on behalf of defendant-appellee Osama Awadallah and amicus curiae the New York Council of Defense Lawyers. Cleary, working in collaboration with Latham & Watkins, submitted an amicuscuriae brief on behalf of pro bono client the NYCDL in support of Mr. Awadallah’s criminal appeal. The Second Circuit ruled in favor of Mr. Awadallah on all points and specifically cited the amicus curiae brief in its decision.

Mr. Awadallah had been arrested in 2001 under a material witness warrant after his name and phone number were found in a car belonging to one of the 9/11 hijackers. After being detained by the government for approximately three weeks, during which time he alleges the government consistently mistreated him, Mr. Awadallah was questioned before the grand jury. Following cross-examination, he recanted part of his initial testimony. The government then charged him with lying to the grand jury, but not with any other offense. The case was assigned to Judge Shira Scheindlin of the District Court for the Southern District of New York, who last May issued the pre-trial evidentiary ruling from which the government took this interlocutory appeal.

The government moved to remand Mr. Awadallah’s case to a different district judge instead of sending it back to Judge Scheindlin, arguing that reassignment was necessary to preserve the appearance of justice. In support of its motion, the government cited various occasions on which Judge Scheindlin had raised questions about the government’s treatment of Mr. Awadallah - although on many of those occasions she ultimately ruled in the government’s favor. The NYCDL argued that the extraordinary measure of removing the case to a different judge was completely unwarranted in this case. Picking up on the NYCDL’s arguments, the Court noted that a district judge is “not a spectator” and that the trial judge’s active involvement may be necessary to ensure that problematic issues are raised and examined. The Court also referenced the NYCDL brief in which it argued that all the cases cited by the government where a remand request had been granted involved requests submitted by the defendant or initiated suasponte by the court on the defendant’s behalf and not by the prosecutor.